Sushant Nayak vs State of Chhattisgarh

Fakhruddin, J.—Heard. The applicant is being prosecuted for an offence u/s. 20 of N.D.P.S. Act in Crime No. 473 of 2004 registered at Police Station GRP, Raipur. The applicant was arrested on 12-4-2004.

The prosecution story is that on 10-4-2004 the applicant was found in possession of 5 Kgs. of Cannabis at Raipur Railway Station.

Learned counsel for the applicant contended that the seizure memo, which has been effected on the accused prima facie shows that at the lime of seizure, the applicant was unconscious and his signatures could not be taken and such seizure requires thorough scrutiny. Learned Counsel submits that it is not an offence involving the commercial quantity as contemplated u/s. 37(1)(b) of the Act. He further contended that the contraband Ganja said to be recovered from the applicant is more than smaller quantity, but less than commercial quantity of 20 Kilograms and above, and the offence relating to Cannabis is covered by section 20 of the Act and the bar u/s. 37 of the N.D.P.S. Act is not reflected in as much as the provisions contained in section 20 of the Act, as amended with effect from 2nd October 2001.

Section 37(1)(b) is relevant here and quoted below:

Offences to be cognizable and non-bailable.--Notwithstanding anything contained in the Code of Criminal Procedure 1973 (2 of 1974).

(a) *** *** ***

(b) no person accused on an offence punishable for (offences u/s 19 or Section 24 or Section 27A and also for offences involving commercial quantity) shall be released on bail or on his own bond unless--

(i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and

(ii) where the public prosecutor opposes the application, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.

Learned counsel submits that it comes u/s 20(ii)(b)(ii)(B) where the offence punishable is provided for a term which may extend to 10 years, and with fine which may extend to one lakh rupees and no minimum sentence is there.

Section 20(b)(ii)(B) of the Act is also relevant here and quoted below:

Punishment for contravention in relation to cannabis plant and cannabis.--Whoever, in contravention of any provision of this Act or any rule or order made on condition of licence granted thereunder--

(a) *** *** ***

(b) produces, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses cannabis, shall be punishable--

(i) *** *** ***

(ii) where such contravention relates to sub-clause (b)

(A) *** *** ***

(B) and involves quantity less than commercial quantity but greater than small quantity with rigorous imprisonment for a term which may extend to ten years, and with fine which may extend to one lakh rupees.

Learned counsel also submits that Section 100 of Cr.P.C. deals with search and the object is to ensure honest and genuine search.

Learned counsel for the applicant further contends that in absence of any material showing conscious possession of the illicit liquor by the accused, he cannot be said to be in possession of the same. In support of his contention, he placed reliance on a decision of the Supreme Court in Narcotics Control Bureau, Jodhpur Vs. Murlidhar Soni and Others, and another decision in Anil Kumar Ram Avtar Gupta Vs. State of M.P.,

The Challan papers also show that the accused, who is a patient was ill and admitted in Hospital and at the time of seizure, the accused was unconscious and his signatures could not be taken.

Having heard counsel for the parties and considering the totality of the circumstances and that the applicant is said to be in jail since 12-4-2004, it is directed that the applicant be released on his furnishing a personal bond in sum of Rs. 10,000/- with two sureties of the like amount to the satisfaction of the trial Court concerned for his appearance before the said Court or as and where so directed.

The bond shall contain Photograph, crime number, details of movable and immovable properties belonging to the applicant. He shall attend on all dates of hearing before the said Court unless he is exempted and shall not repeat the offence. C.C. as per rules. Bail granted.